Excerpt:.....of
pelief not decisive of real character of suit--defendant in possession
of suit property--plaintiff cannot obtain possession without setting
aside transaotion under which defendant is in possession--
article 44 applies ; it is not the form of the relief claimed which determines
the real character of the suit for the purpose of ascertaining
under which article of the limitation act (1908) the
suit falls. though the relief claimed in the suit is possession
of immovable property, yet if the property sued for is
held by the contesting defendant under a sale or other
transfer which is not void, but only voidable, and he can
not obtain possession without the transfer being set aside,
the suit must be regarded as one brought to set aside the
transfer, though no relief in..........subordinate judge. salem, are the appellants herein. there was one venka-tarama iyer, to whom the suit property belonged, and he had four sons, narasim-ha iyer. nanna iyer, sundara iyer and sitarama iyer. he obtained releases from two of his elder sons, narasimha iyer and nanna iyer, under ex. b-21, dated 24-7-1908 and ex. a-15 dated 12-7-1913 respectively. afterwards, under ex. a-1. dated 10-11-1918, he entered into an arrangement with his third son, sundara iyer, and fourth son, sitarama iyer. the terms of the agreement, as recorded in paragraph 11 of the judgment, the correctness of which has not been challenged before us. is that sundara iyer should have a life estate in the suit properties without any power of alienation and he should live in the house and collect the rent and.....

Judgment:1. The plaintiffs in O. S. No. 60 of 1963 on the file of the court of the Subordinate Judge. Salem, are the appellants herein. There was one Venka-tarama Iyer, to whom the suit property belonged, and he had four sons, Narasim-ha Iyer. Nanna Iyer, Sundara Iyer and Sitarama Iyer. He obtained releases from two of his elder sons, Narasimha Iyer and Nanna Iyer, under Ex. B-21, dated 24-7-1908 and Ex. A-15 dated 12-7-1913 respectively. Afterwards, under Ex. A-1. dated 10-11-1918, he entered into an arrangement with his third son, Sundara Iyer, and fourth son, Sitarama Iyer. The terms of the agreement, as recorded in paragraph 11 of the judgment, the correctness of which has not been challenged before us. is that Sundara Iyer should have a life estate in the suit properties without any power of alienation and he should live in the house and collect the rent and maintain himself, and the sons to be born to Sundara Iyer subsequent to Ex. A-1 have to get these properties absolutely. The plaintiffs and the first defendant in the suit are the sons of Sundara Iyer and admittedly they were born subsequent to Ex, A-l. Sundara Iyer alienated the suit properties in favour of one Piyari Jan Animal under Ex. B-22, dated 5-3-1943. Subsequently, he re-purchased the properties from Piyari Jan Ammal under Ex. B-23. dated 31-3-1946. Thereafter, he made, the present alienations which are the subject-matter of attack in the suit. The C Schedule property was alienated by Sundara Iyer to one Rama-swami Iyer on 7-11-1946 under the original of Ex A-5. The D Schedule property was alienated in favour of defendants 3 and 4 under Ex. A-7. dated 1948. The E Schedule property was alienated in favour of one Venkatachalapathi Iyer under Ex. B-26 (the registration copy being Ex. A-6), dated 17-3-1947. All these documents were executed by Sundara Iyer not only on his own behalf but also as the guardian of his minor sons, the plaintiffs as well. In all these sale deeds, the first defendant, who was a major on the dates of the transactions, has joined in executing them. It is after all these the present suit was instituted for a dec--laration that the sale deeds executed by Sundara Iyer regarding the C to E Schedule properties are not binding on the plaintiffs so far as they relate to the two-third share of the plaintiffs, for partition and separate possession of their two-third share and for past and future profits.

2. The defendants, other than the first defendant are the alienees or their legal representatives, and they have put forward several contentions, the principal of them being one of limitation.

3. The trial Court considering the evidence and the contentions of the parties, came to the conclusion that the suit instituted by the appellants was barred by limitation, though the properties were the self-acquired properties of Venkata-rama Iyer, the grand-father of the plaintiffs in the suit. This conclusion had to be rendered in view of the case put forward by the alienees that the properties were the ioint family properties of Ven-katarama Iyer. In view of the finding on the question of limitation the suit was dismissed. Hence the present appeal by the plaintiffs in the suit.

4. Since we are of the opinion that the suit instituted by the appellants had to fail on the ground of limitation, it is unnecessary for us to consider the other controversies raised by the parties, The trial Court has applied Article 44 of Schedule I of the Limitation Act of 1908 and held that the plaintiffs having instituted the suit after the expiry of three years of attaining majority, the suit was bound to fail. There is no controversy before us that if Article 44 of Schedule I of the Act of 1908 was the proper Article applicable, the suit was barred by limitation.

5. Mr. B. V. Viswanath'a Iyer. the learned Counsel for the appellants, sought to contend before us that the trial Court was wrong in applying Article 44 of Schedule I of the Limitation Act of 1908 and that it is really Article 140 that is applicable to the facts of this case. We are of the opinion that this contention of the learned Counsel is not sound. Article 44 of Schedule I of the Limitation Act of 1908 is as follows:--

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Description of suit Period of limitation Time froml which period begins to run.

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By a ward who his attained majority, transfer of property by his guardian. Three years. When the ward attains majority. __________________________________________________________________

6. In the plaint, the appellant; themselves have stated in paragraph 13 dealing with the court-fee, that they were calculating the court-fee under Section 40 of the Court-fees Act at Rs. 1,100/- for the cancellation of the sale deeds in respect of the C to E Schedule properties inclusive. In the prayer portion of the plaint in paragraph 15 (a), they have prayed for a declaration that the sale deeds in respect of the C to E Schedule properties are not binding upon the plaintiffs to the extent of their two-third share in the plaint C to E Schedule properties, Mr. B. V. Viswanatha Iyer's contention is that the suit itself has not been instituted for setting aside the alienations effected by the deceased Sundara Iyer, who died on 10-3-1960, and. therefore, the suit being one for partition and recovery of possession, it is not Article 44 that applied to this case but it is Article 140 that applies to the case. In our opinion, the decisions of this court in his behalf ars directly against this contention of the learned Counsel. In Ramaswami v. Go-vindammal, AIR 1929 Mad 313, a Bench of this Court had to consider this question. The facts of that case are practically ad idem with the facts of the present case. In that case, the Bench came to the conclusion that the sale deed executed by the guardian of a minor, though unauthorised, vested title to the property in the alienee, and the minor had therefore to sue to set it aside. Dealing with an argument similar to the one advanced before us, namely, that the prayer of the appellants in this case is not for setting aside the alienation but merely for recovery of possession, the Bench of this court said-

"It has been well settled by several decisions of their Lordships of the Privy Council that it is not the form of the relief claimed which determines the real character of the suit for the purpose of ascertaining under which Article of the Limitation Act the suit falls. Though the relief claimed in the suit is possession of immovable property, yet if the property sued for is held by the contesting defendant under a sale or other transfer which is not void, but only voidable, and he cannot obtain possession without the transfer being set aside, the suit must be regarded as one brought to set aside the transfer,, though no relief in those terms is prayed for, but the prayer is only for possession of the property".

The facts of the present case are much stronger, because as we have already pointed out in paragraph 13 of the plaint, the appellants themselves treated their claim as one for cancellation of the alienations effected by the deceased Sundara Iyer. On the basis of this conclusion, the Bench held that it is Article 44 that applied, because the erstwhile minors had to sue for setting aside the alienations.

7. This Bench decision has been followed by this court in two other decisions. Rangasami Goundec v. Marappa Gounder, is a decision by Venkatarama Iyer, J. The headnote in this behalf is as follows:

"..... Under the law, when a natural guardian having authority to alienate the property of the ward for proper purposes effects a transfer which is in excess of that authority, it cannot be put in the same position as an alienation by an unauthorised person. An unauthorised alienation by a lawful guardian is only voidable and must be set aside within the time prescribed by Article 44 of the Limitation Act. unlike an alienation by an unauthorised person, which is void under the law and does not require to be set aside under that Article. Where the transfer is operative and the question is whether it is binding on the ward or not, it has to be set aside within, the time prescribed by Article 44."

It must be remembered that in the present case, it is the natural and legal guardian, namely, the father, who has purported to alienate the interests of the minor plaintiffs on their behalf.

8. The next decision is that of Ramaswami, J., in Adimoola Padayachi v. Pavadai Padayachi, 1958-2 Mad LJ 57. The following headnote brings out the point decided-

"Where the alienation is of the minor's property by the minor's legal guardian and where the minor is eo nomine party to the document and where the alienation is for an alleged purpose or necessity binding on the minor, the alienation is only a voidable one and not a void one, and such an alienation must be formally set aside within three years of the minor attaining majority. It cannot be ignored by the minor and he cannot purport to alienate the property after attaining majority, ignoring the alienation made by his legal guardian during his minority."

Mr. Viswanatha Iyer, the learned Counsel for the appellants, was not able to bring to our notice any decision of this court or the Supreme Court or Privy Council, taking a view different from the view taken by this court in the decisions referred to above holding that where a lawful guardian of the, minor purports to alienate the minor's property and the minor on attaining majority wants to set aside that alienation, it is Article 44 that applied and not any other Article.

9. Mr. Viswanatha Iyer. however, contended that the decision of the Privy Council in Skinner v. Naunihal Singh, 56 Ind App 192 = (AIR 1929 PC 158), has taken a different view and therefore the decisions of this court referred to above requires reconsideration. The headnote of that decision states as follows-

"When a mortgagee has transferred possession of the mortgaged property for a valuable consideration, a suit to redeem by a plaintiff who at the date when the mortgagee transferred possession had a contingent interest in remainder In the property, is governed by Article 140 and not by Article 134 of the Indian Limitation Act, 1908, Schedule I; the suit consequently is not barred if it is brought within 12 years from the date when the plaintiffs estate falls into possession, even though it is brought more than 1,2 years after the date of transfer under which the defendant claims."

10. We are unable to hold that this decision is of any assistance whatever to the appellants herein. That decision dealt with a case of a person having a contingent vested remainder in the property at the time when the mortgagee transferred possession of the property, and had nothing whatever to do with the question of limitation where a minor whose lawful guardian had alienated the property, institutes a suit to set aside the alienation. Consequently, we are of the opinion that the said decision has no bearing on the question to be considered by us in the present appeal.

11. Under these circumstances, the appeal fails and is dismissed. There will be no order as to costs. The appellants have preferred the appeal in forma pauperis, and since they have failed, they will have to pay the court-fee due to the Government on the Meromandum of appeal.